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Employee returning from FMLA leave? Don’t demand heroic catch-up

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in Employment Law,FMLA Guidelines,Human Resources

Exempt employees are generally expected to work as long and as hard as they need to in order to get their jobs done—all without overtime pay.

But that doesn’t mean employers should expect exempt employees who are returning from FMLA leave to burn the midnight oil to get caught up if there was no plan in place to pick up the slack during the absence. Insisting on that is an invitation to be sued for retaliation.

Recent case: Tyree Sherrer worked for the Hamilton County Board of Health in a position largely funded by grants. She consulted and provided training on health and safety for child care providers in an eight-county region. The grant required completing 194 consultations during the grant period.

Then Sherrer discovered a lump in her breast and learned she had a very aggressive form of breast cancer that required surgery, radiation and chemotherapy.

Sherrer took 12 weeks of FMLA leave, returning to work just three weeks before the grant was to expire. She still had more than 70 consultations to complete. She asked her supervisor to find out if all of them had to be completed on time, given her long absence. It was clear no one else had taken on the task while she was out.

Her supervisor checked with the grant administrator, who said that if the work hadn’t been completed because of a legitimate absence, an extension was fine. But the supervisor never relayed that info to Sherrer. Instead, she told Sherrer she had to complete the work, even if it meant long hours. Sherrer did manage to get all the work done.

Then she sued for retaliation, claiming the requirement was an adverse employment action. The court agreed. (Sherrer v. Hamilton County, No. 1:09-CV-266, SD OH, 2010)

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